More on the Supreme Court’s Ruling in EEOC v. Abercrombie & Fitch

As noted earlier, the Supreme Court ruled today on the issue of whether an employer has to have “actual knowledge” of an employee’s need for religious accommodation to be liable for disparate-treatment under Title VII.  In the lawsuit, the plaintiff job applicant never asked for any accommodation related to her religion.  Instead, she wore a head scarf to her interview and the employee who conducted the interview concluded that the employee wore the head scarf for religious reasons.  The job applicant was denied employment because the head scarf violated Abercrombie’s’ “Look Policy” which prohibited employees from wearing “caps.”  At no time did the applicant ever ask to be permitted to wear a head scarf in deviation from the Look Policy.

The 10th Circuit held that Abercrombie could not be liable for failure to accommodate the applicant until the applicant provided Abercrombie with actual knowledge of their need for accommodation.  The Supreme Court disagreed, and held that all the applicant needed to show was that their need for an accommodation was a motivating factor in the employer’s decision not to hire the applicant.  The Court stated:  Title VII’s “disparate treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.”

This decision means that a job applicant need not ask for a religious accommodation to be able to bring a claim for disparate-treatment discrimination under Title VII if they are not hired.  As the concurring and dissenting opinions make clear, the decision also ignores Title VII’s requirement that disparate-treatment be intentional, i.e., that an employee must prove than an employer took action because of the employee’s  religion or other protected characteristic.  According to Judge Alito’s concurrence, the decision also misstates the role of an employer’s “actual knowledge” in a disparate-treatment claim because an employer must know something about the employee’s religion or religious practice for it to be a motivating factor in the employer’s decision.

The case is now remanded to the 10th Circuit Court of Appeals.  We will keep you posted on further developments.

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